Under the EEOC Guidelines, "prevention is the best tool
for elimination of sexual harassment. Employers should: (I) affirmatively
raise the subject; (ii) express strong disapproval; (iii) develop appropriate
sanctions; (iv) inform employees of their right to raise and how to raise
the issue of harassment under Title VII; and (v) develop methods to sensitize
all concerned." See generally - EEOC Policy Guidance No. N-915-050,
"Current Issues On Sexual Harassment," March 19, 1990.

The personal nature of sexual harassment complaints is such that great
care must be taken to handle such complaints in an evenhanded, sympathetic
manner. For example, assurances of confidentiality (consistent with the
rights of the alleged harasser and other considerations) and the ability
to present one's complaint to a member of the same sex should be considered
as part of the employers investigation procedure.

1. HAVE A POLICY PROHIBITING SEXUAL HARASSMENT

Many courts have held that an employer may negate liability or diminish
damages for sexual harassment by its employees in a hostile work environment
claim by taking immediate corrective action when
it first learns of any illegal harassment. Therefore,
employers must adopt a written policy against harassment.
An employer should also tell its supervisors that harassment is illegal
and will not be tolerated, and publicize to all employees its grievance
procedures. These policies should condemn all forms of harassment in the
workplace and specifically note what conduct is prohibited. It is important
to state that there will be severe repercussions for anyone found to be
engaging in sexual harassment.

The employers anti-harassment policy should encourage an employee
who has been the victim of harassment to notify his or her supervisor or
the personnel manager. The policy should also inform the employee who to
notify when the harassing party is the immediate supervisor. As a practical
matter, the policy may allow the victim of harassment to report sexual harassment
to any supervisor or manager, so that the victim can bring the complaint
to any person in management that s/he feels comfortable with. The policy
should publicize the employers grievance procedures for handling complaints.
The importance of maintaining a specific and well-publicized anti-harassment
policy is reflected by the Supreme Court's statement in Meritor Savings
Bank, that the employers claim that it should be insulated from liability
because the employee failed to invoke the grievance procedure would be "substantially
stronger if its procedures were better calculated to encourage victims of
harassment to come forward."

2. PROMPTLY INVESTIGATE CLAIMS OF SEXUAL HARASSMENT

Do not put off the investigation simply because you want the
headache to go away. It is imperative that investigation of a sexual
harassment complaint be commenced, investigated and resolved as
soon as possible after the complaint has been received. This is
very important in the employers defense of such claims and enables
the investigator(s) to obtain information from the parties (including witnesses)
while it is still fresh in their minds. Promptness also lets employees know
that the employer takes the complaint seriously. Finally, the sooner a complaint
is investigated and resolved, the sooner the inappropriate behavior (if
any) can be corrected.

Investigators. It is important that the investigator(s)
should be perceived by all parties involved as fair, honest and unbiased.
The complaint can be investigated in-house by management, or by legal counsel.
It is suggested that a team of two people be given responsibility for investigating
a sexual harassment complaint, so that they may balance each other and corroborate
the investigation.

It is imperative that each action taken in investigating a sexual harassment
complaint be carefully and thoroughly documented. The basis
for any conclusions reached and disciplinary action taken should also be
clearly recorded. It may be advisable to consult legal counsel early on
in the process.

The first step is to talk to the victim. Two management
officials should be present at such an interview so that, in the event
of litigation, there is an additional witness to this first interview.
At the conclusion of this initial meeting, the victim should be asked to
sign a statement setting forth the underlying facts of harassment. However,
if an employee is unwilling to make such a written statement, the employer
must still continue with the investigation. In that case, the employer
should prepare a written memorandum which confirms that a complaint was
brought to the employers attention, sets forth the allegations of
the victim, and documents the date the initial meeting was held. It
is important to include the dates when the complaint was made and the date
of the meeting because the promptness of the investigation will impact
an employer's liability. The victim should be instructed not to
talk about the incident to other employees. Finally, ask the victim for
any witnesses to the alleged events and any documents (for example letters
or notes) that might support the claim.

The second step is to interview the alleged harasser.
It is important to provide the alleged harasser with enough information
so that the accused knows what is being alleged. This information may include
naming the victim. If the accused fails to deny the conduct, but simply
explains the circumstances, an employer's investigation is complete and
it should fashion an appropriate remedy. If, however, the accused denies
engaging in the objectionable behavior, the employer must continue its
investigation. Again, document this meeting and the content of the interview.

3. GATHER INFORMATION RELATING TO THE COMPLAINT

After interviewing the victim and the alleged harasser, any witnesses
they identify should be promptly interviewed. If no witnesses have been
identified, an employer should meet with employees that work with the accused
harasser and determine whether any similar acts of objectionable conduct
have occurred. Additionally, the personnel records of the parties involved,
as well as any other relevant documentation, should be reviewed. Such information
may assist the investigating team in assessing the credibility of the parties,
as well as making a determination of the severity of the conduct and the
appropriate measures to be taken. At all times during this process,
an employer should be aware that it needs to be thorough and to complete
its investigation as quickly possible.

4. RESOLVE THE COMPLAINT AS SOON AS PRACTICABLE

Once a complete investigation of the alleged improper conduct has been
completed, the employer must determine the nature and severity of the conduct
in question before it can decide the appropriate action to be taken in response
to the complaint. The employer may greatly decrease its potential liability
on a sexual harassment claim by the promptness, thoroughness and
reasonableness of its evaluation of the evidence it has gathered.
Accordingly, it is critical that the employer document the decision it reaches
and the action it takes.

If the complaint is corroborated, the investigation
is complete and the harasser should be disciplined. The employer must take
swift and appropriate disciplinary action against the harasser. The
range of appropriate discipline, depending upon the circumstances, could
be as light as a written warning or as heavy as termination.

If a decision is made to separate the harasser and the victim through
a transfer, the harasser, and not the victim, should be transferred. If
this is not possible, the victim should only be transferred if he or she
is willing to sign a written statement that she voluntarily agrees to the
transfer. The damages of the victim may be greatly increased if the parties
are not separated. Care must be taken that the party who is relocated does
not suffer loss of job benefits or other damage.

If the complaint is not proven, its not
appropriate to discipline either party; however, the employer may wish to
explain its reasoning to both the complainant and the alleged harasser.
The employer may also want to inform the alleged harasser that any subsequent
complaints will be fully investigated and, if proven, s/he will be terminated.
This warning should be documented and placed in a confidential
investigation file with all other written documents regarding the investigation
and complaint.

5. TAKE APPROPRIATE DISCIPLINARY ACTION

The type and severity of disciplinary action will depend on the past
employment history of the harasser, as well as the severity of the sexual
harassment complained of in this instance. If the harasser has an exemplary
record and the harassment is inadvertent or relatively minor in nature (e.g.
"you've got great legs"), a simple written reprimand may suffice.
Ongoing or more severe acts of sexual harassment may lead to dismissal.
The level of disciplinary action necessary to prevent an employer from liability
for claims of harassment was recently addressed by the Ninth Circuit. In
Intlekofer v. Turnage, 973 F.2d 773 (9th Cir. 1992), the court held that
verbal warnings and counseling were not a sufficient response to continuing
sexual harassment of a Veterans Administration employee by a coworker. The
court stated that although an oral warning may be a "very effective"
first step, "if the harassment continues . . . the employer must impose
more severe measures in order to ensure that the behavior terminates."
The court further stated that the extent of the discipline depends upon
the seriousness of the conduct. Employers must insure that the corrective
action they take is effective.

6. FOLLOW-UP WITH THE VICTIM

Finally, the employer should affirmatively follow up with the victim
to determine (a) whether the inappropriate activity has stopped, and (b)
whether any retaliatory or related activity has been initiated against the
complainant or any witnesses or other involved parties. It would be appropriate
for the person to whom the victim made the complaint, to ask the victim
about this (e.g. one month after the resolution of the complaint, then again
at six months). Depending on the situation, it may also be advisable to
interview coworkers or supervisors of the harasser in order to ascertain
whether inappropriate activity has continued with respect to the original
victim or other parties. Be sure to also document this follow up activity.